Citation Nr: 1300207
Decision Date: 01/03/13 Archive Date: 01/11/13
DOCKET NO. 09-40 799 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas
THE ISSUES
1. Entitlement to service connection a right hip disorder, to include as secondary to a service-connected low back strain.
2. Entitlement to an increased rating greater than 20 percent for a right knee disability, status post arthroscopic and medial meniscectomy surgery.
3. Entitlement to an increased rating greater than 20 percent for a chronic low back strain.
REPRESENTATION
Appellant represented by: Michael R. Viterna, Attorney at Law
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
Paul S. Rubin, Counsel
INTRODUCTION
The Veteran had active duty service from July 1972 to June 1975 in the U.S. Army and from November 1976 to November 1995 in the U.S. Coast Guard.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas.
In February 2010, the Veteran presented testimony at a Travel Board hearing at the RO before a Veterans Law Judge who has since retired. In a September 2012 letter, the Veteran was offered another hearing before a different Veterans Law Judge who would ultimately decide this appeal. The Veteran responded in September 2012 that he did not want a new hearing with a different Veterans Law Judge. See generally 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012) (the Board member who conducts the hearing will participate in making the final determination of the claim). Therefore, no additional hearing is necessary.
This case was previously before the Board in April 2011 for appellate review. In an April 2011 decision, the Board denied all three issues currently on appeal. The Board also remanded the issues of service connection for left lower extremity numbness and an increased rating greater than 10 percent for right lower extremity radiculopathy. Those issues remain in development status at the RO and are not currently pending before the Board.
The Veteran then appealed the Board's decision as to the three current claims at issue to the United States Court of Appeals for Veterans Claims (Court). The Veteran did not contest the Board's denial of his total disability rating based on individual unemployability (TDIU) claim.
In a July 2012 Order, the Court vacated and remanded the case for proceedings consistent with a Joint Motion for Remand (Joint Motion), as to the three issues on appeal here.
Upon return from the Court, the Board sent a letter to the Veteran in September 2012 informing him that he had 90 days to submit additional evidence with an option as to whether he desired to waive consideration of this additional evidence by the RO. See generally 38 C.F.R. § 20.1304 (2012). In response, in December 2012, the Veteran submitted additional medical evidence and argument with a specific request for the Board to remand the case back to the RO, so that the RO could consider the newly submitted evidence.
A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.
The issues of entitlement to an increased rating for the Veteran's service-connected right knee disability and chronic low back strain are addressed in the REMAND portion of the decision below and are REMANDED to the RO in North Little Rock, Arkansas for further development and consideration.
FINDING OF FACT
There is an approximate balance of favorable and unfavorable evidence as to whether the Veteran's right hip bursitis is caused by his service-connected low back disability.
CONCLUSION OF LAW
Resolving all reasonable doubt in his favor, the Veteran's right hip bursitis is the result of his service-connected low back disability. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012).
REASONS AND BASES FOR FINDING AND CONCLUSION
VA's Duty to Notify and Assist
With regard to the secondary service connection claim for a right hip disorder, review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify was accomplished by way of a VCAA letter from the RO to the Veteran dated in May 2008. In any event, if any defect in VCAA notice or assistance is found, such defect is not prejudicial to the Veteran, given the completely favorable disposition of the appeal. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).
Governing Laws and Regulations for Secondary Service Connection
Service connection may be granted if it is shown the Veteran develops a disability resulting from an injury sustained or disease contracted in the line of duty, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306.
In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).
Secondary service connection may be established if a disability is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(a). Moreover, secondary service connection may be established, as well, by any increase in severity (i.e., aggravation) of a nonservice-connected condition that is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(b), effective October 10, 2006. See 71 Fed. Reg. 52,744-52,747 (September 7, 2006). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); Tobin v. Derwinski, 2 Vet. App. 34, 39 (1991). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448.
A claim for secondary service connection requires competent medical evidence linking the asserted secondary disorder to the service-connected disability. Velez v. West, 11 Vet. App. 148, 158 (1998). See also Wallin v. West, 11 Vet. App. 509, 512 (1998) and McQueen v. West, 13 Vet. App. 237 (1999) (both indicating, like Velez, that competent medical nexus evidence is required to associate a disorder with a service-connected disability).
In short, in order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998).
Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).
Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37; Layno v. Brown, 6 Vet. App. 465, 469 (1994).
In determining whether service connection is warranted, including secondary service connection, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991).
Analysis - Secondary Service Connection for a Right Hip Disorder
The Veteran has contended that his current right hip disorder is caused by or the result of his service-connected low back strain. He has asserted that his right hip compensates for the weakness in his low back, thereby applying uneven pressure to the right hip, which has led to bursitis in the right hip. See January 2008 claim; January 2009 Notice of Disagreement (NOD); July 2009 Veteran's statement; January 2010 representative statement; February 2010 Travel Board testimony at pages 7, 11-12.
Upon review of the evidence of record, the Board concludes that the Veteran is entitled to secondary service connection for a right hip disorder.
The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. §§ 1110, 1131; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the present case, there is sufficient evidence that the Veteran meets the threshold criterion for service connection of a current right hip disability. Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225. Specifically, in March 2009 a VA examiner assessed the Veteran as having trochanteric bursitis of the right hip following a physical examination and an x-ray report revealing minimal degenerative change in the right hip. In July 2008 and January 2010 private treatment reports, Dr. B.W., MD. (initials used to protect the Veteran's privacy) also diagnosed him with right hip trochanteric bursitis. The first complaints of right hip problems are discussed in private treatment records beginning in 2003. In any event, the Veteran clearly has a current right hip disorder, and the remaining question is whether the disorder developed secondary to his service-connected low back disorder.
With regard to secondary service connection, the record reflects a favorable private medical opinion, as well as an unfavorable opinion from a VA examiner.
The Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value. The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991).
In evaluating the probative value of competent medical evidence, the Court has stated, in pertinent part:
The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators; . . .
Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). It is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons or bases. See Owens v. Brown, 7 Vet. App. 429, 433 (1995).
With regard to the negative opinion, a March 2009 VA examiner opined that it was less likely than not that the right hip bursitis was secondary to the Veteran's service-connected lumbar strain. In this regard, the examiner explained that the Veteran would have exhibited problems with both hips and not just the right hip if it was secondary to the lumbar strain. However, the VA examiner's opinion was unclear in some respects. The examiner confusingly added that he could not relate the right hip bursitis to the lumbar strain without speculation. Thus, the VA opinion vacillates from being conclusive to speculative, thereby creating some ambiguity on the issue of secondary service connection. The Court has pointed out that an absolutely accurate determination of etiology is not a condition precedent to granting service connection, nor is definite etiology or obvious etiology. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The examiner also confusingly comported the issue of direct service connection for a rip hip disorder to secondary service connection for a right hip disorder when explaining his rationale.
With regard to the positive opinion, in January 2009, Dr. B.W., who has treated the Veteran since 2008, opined that the Veteran's right hip pain is directly related to his low back pain. Although he did not provide a direct rationale in this particular opinion, the Veteran has reported that Dr. B.W. explained to him that his right hip compensates for the weakness in his low back by applying uneven pressure to the right hip, which led to bursitis. The Court has indicated that lay evidence regarding what a medical professional told a lay person was specifically listed as an example of competent lay testimony in Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board also finds the Veteran credible in his statements regarding Dr. B.W.'s explanation. Overall, although flawed to an extent, this private opinion lends some evidence in support of the claim.
It follows that there is at least some probative medical evidence of record that demonstrates a secondary relationship between the Veteran's current right hip disorder and his service-connected low back strain. 38 C.F.R. § 3.310 (a); Velez, 11 Vet. App. at 158.
As currently codified, VA law defines the "benefit of the doubt" doctrine as:
When, after consideration of all evidence and material of record in this case before the Department with respect to benefits under laws administered by the Secretary, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination in the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.
38 U.S.C.A. § 5107(b). See also 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Here, there is an approximate balance of the positive and negative evidence. The evidence is in relative equipoise. Certain elements of both the positive and negative opinions in this case are probative. Both opinions have their flaws as well. But in light of the contrasting, yet equally probative opinions in the present case, the benefit of the doubt is resolved in the Veteran's favor. Accordingly, secondary service connection for a right hip disorder is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.
ORDER
Subject to the provisions governing the award of monetary benefits, service connection for a right hip disorder is granted.
REMAND
As discussed above, in a July 2012 Order, the Court vacated and remanded the increased rating issues for the right knee and low back for proceedings consistent with a Joint Motion. Specifically, the Joint Motion stated that the Board did not provide adequate reasons or bases for denying entitlement to increased ratings in excess of 20 percent for both the right knee and low back disabilities. They noted that the Veteran repeatedly experienced "flare-ups" of both his right knee and low back symptoms with the onset of cold-weather, rainy weather, lifting, and activity. Despite the Veteran's assertion regarding increased severity during "flare-ups," the Joint Motion pointed out that the Board failed to consider the issue of "flare-ups" or whether the Veteran should have been examined during one of his "flare-ups." See Ardison v. Brown 6 Vet. App. 405, 407-08 (1994) (indicating that, to the extent possible, VA should schedule an examination for a condition that has cyclical manifestations during an active stage of the disease to best determine its severity).
The Board observes that, in Voerth v. West, the Court found Ardison inapplicable where the Veteran's disability, in its recurrent state, did not affect his earning capacity and the worsened condition did not last more than a few days. Voerth v. West, 13 Vet. App. 117, 122-23 (1999) (holding that condition that became inflamed approximately twice a year for a few days did not require examination during flare-up). Moreover, scheduling the Veteran for a VA examination during a flare-up due to cold weather may be impractical. Regardless, at the very least, the Board finds that it would be helpful to have a VA examiner address the nature of the Veteran's disabilities during instances of "flare-ups." See generally DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).
In addition, the Veteran continues to assert that his right knee and low back disabilities have worsened since his last June 2008 and March 2009 VA examinations. See e.g., July 2009, February 2012, April 2012, and July 2012 Veteran's statements; December 2012 attorney letter. VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, a VA examination is also necessary for the purpose of ascertaining the current severity and manifestations of the Veteran's service-connected right knee and low back disabilities.
Lastly, the Board notes that a letter was sent to the Veteran in September 2012 informing him that he had 90 days to submit additional evidence with an option as to whether he desired to waive consideration of this additional evidence by the RO. See generally 38 C.F.R. § 20.1304 (2012). In response, in December 2012, the Veteran submitted additional medical evidence and argument with a request for the Board to remand the case back to the RO, so that the RO could consider the newly submitted evidence. Therefore, the increased rating issues on appeal must be remanded to the RO for readjudication that includes consideration of this new evidence.
Accordingly, the case is REMANDED for the following action:
1. The Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service- connected right knee disability. If possible, an attempt should be made to schedule the Veteran during a flare-up. (The Veteran has stated that such flare-ups typically occur during cold or rainy weather and after lifting and activity.) If it is not possible to schedule the Veteran during a flare-up, the RO should document that determination in the claims file.
Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file.
The examiner should comment on the severity of the Veteran's service-connected right knee disability and report all signs and symptoms necessary for rating the disability, including the range of motion in degrees and the severity of any recurrent subluxation or lateral instability. He or she should also state whether the Veteran has dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion or whether there has been the removal of semilunar cartilage. The examiner should further indicate if there is impairment of the tibia and fibula.
The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors.
In addition, the examiner should specifically discuss any additional functional impairment that the Veteran experiences during a flare-up. According to the Veteran, flare-ups occur during cold or rainy weather and after lifting and activity.
A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review.
2. The Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service- connected chronic low back strain. If possible, an attempt should be made to schedule the Veteran during a flare-up. (The Veteran has stated that such flare-ups typically occur during cold or rainy weather and after lifting and activity.) If it is not possible to schedule the Veteran during a flare-up, the RO should document that determination in the claims file.
Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file.
The examiner should comment on the severity of the Veteran's service-connected low back disability and report all signs and symptoms necessary for rating the disability, including the range of motion in degrees and the total duration of any incapacitating episodes. The examiner should also identify all neurological manifestations of the disability.
The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors.
In addition, the examiner should specifically discuss any additional functional impairment that the Veteran experiences during a flare-up. According to the Veteran, flare-ups occur during cold or rainy weather and after lifting and activity.
A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review.
3. The RO should then review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the examiner for corrective action. See Stegall v. West, 11 Vet. App. 268, 271 (1998).
4. Thereafter, the RO should consider all of the evidence of record, including the evidence submitted directly to the Board following the Joint Motion, and readjudicate the issues remaining on appeal. If the benefit sought is not granted, issue a Supplemental Statement of the Case and allow the Veteran and his attorney an opportunity to respond.
Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. No action is required of the Veteran until he is otherwise notified by the RO. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
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JESSICA J. WILLS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs